A federal internship is a coveted position. Judges wield considerable power in selecting their clerks – so vast that fear of reprisal has forced many clerks to remain silent in the face of abuse. I even proposed eliminating internships as a way to eliminate this power imbalance. But as long as federal internships remain, judges will still exercise near absolute discretion over who they hire.
At a minimum, clerk candidates must possess certain legal skills: careful reading, clear writing, and keen insight. Beyond those checkboxes, the decision to hire one candidate over another often comes down to adapt– the match between the judge and the candidate; the match between the candidate and the other clerks of the chambers; the fit between the candidate and clerks from other chambers (inter-chamber shuttle diplomacy is an undervalued attribute of the clerk); etc Each judge will understand “fit” differently.
Some judges will also hire based on a candidate’s potential for success in the future. We know all about the so-called “feeder” judges who hire court clerks to recommend them to the Supreme Court. When a judge hires such a superstar, the “nurturer” judge looks good! Thus, “feeder” judges have every interest in identifying clerks – who have often only completed one or two semesters of law! – having the potential to go upstairs.
Fortunately, the potential for success is not limited to One First Street. Many unelected court clerks will pursue distinguished careers in different fields: general law, public interest, criminal defense, academia, government, etc. I think it’s very common for judges to give preferences to applicants who are looking to enter one field over another. Some judges, for example, are known to feed academy clerks. Thus, they can favor candidates who have published and who wish to start teaching. Other judges may have experience in public interest litigation and provide an advantage to applicants who want to use their law degree to make the world a better place; applicants who want to cash in on the big bill may be disadvantaged. And let’s not be blind to the ideological screen. Some Democratic-appointed justices will only hire liberal court clerks. Some Republican-appointed judges will only hire conservative court clerks. Of course, many judges (including mine) have hired an ideologically heterogeneous cohort. But many don’t – and with the abolition of the filibuster, I suspect the number of ideologically homogeneous chambers will increase.
In short, judges assess a candidate based on a host of personal factors – dare we say holistic. What has the candidate already done? And what could the candidate do in the future – or more precisely, could does the candidate accomplish if clerkship is now on their resume? Yes, entrusting an internship to a candidate can be the key to his success. It opens so many doors, including access to a network of former clerks.
This context brings me to Judge Ho’s to plan stop hiring Yale Law School graduates. Judge Ho offered a host of reasons in support of his decision, which I will not discuss here. I will rather propose another way of understanding this boycott.
Imagine you are a senior in college. You have been accepted to Yale Law School, as well as several other top schools. Mazal tov! Now you have a choice. How to choose between Yale, Harvard, Columbia, Stanford, Chicago and Virginia? Maybe there are financial constraints – some schools can give more help than others. There may also be personal constraints, such as the need to be close to family. More likely than not, none of these factors would weigh in favor of Yale. I doubt YLS offers much more generous financial aid, and New Haven is hard to reach. Instead, I think an applicant would choose Yale over these other schools because of its prestige. Yale is the number one ranked law school. It looks like Hogwarts. It has the best researchers. He pumps circuit clerks and SCOTUS at a very high rate. Many applicants have a descent path to academia. Your classmates will go to the highest ranks of government. Etc.
Now imagine that you are a center-right senior in college. More likely than not, you know the recent episodes on campus, including the “Traphouse” imbroglio. And even if you don’t know it, you will know it. How? I am reliably informed that the Harvard Law School Admissions Office works with the HLS FedSoc Chapter to identify conservative applicants and persuade them to choose Harvard over Yale. And others outside of Yale give similar messages:
I spoke the other day with three conservative lawyers who recently graduated from Yale Law School. They all agreed that they would tell conservative students not to go to Yale. They see it as a big drop. https://t.co/6YXipPh9KW
— Ed Whelan (@EdWhelanEPPC) September 29, 2022
Knowing how inhospitable Yale is to conservatives, why would a candidate still choose Yale over other more tolerant places? The answer, again, is prestige. And the desire to achieve that prestige outweighs a commitment to values such as free speech and academic openness.
How, then, should a judge assess a conservative candidate who chooses to go to Yale? This person knowingly entered the trapdoor to get an elite degree. I think it is reasonable for a judge to conclude that the plaintiff exercised poor professional judgment. Indeed, the judge may not want to rely on someone who would sacrifice his principles for prestige. In this regard, the judge would choose not to hire conservative YLS graduates because they are unreliable, and possibly even untrustworthy. They have already sold their stocks to go to YLS and will likely sell the same way in the future. From this perspective, choosing to go to Yale with complete information is a failure of moral character. Who needs it? Judge Ho’s boycott directly punishes the students for the choices they made and indirectly punishes the school for not correcting its shortcomings.
Judge Ho’s idea is not entirely new. I proposed a variation of this last year during the “Trap House” scandal. I wrote:
At this point, there’s only one way to hurt YLS: deny her the prestige she so desperately seeks. Specifically, conservative and libertarian 1Ls and 2Ls should be transferred en masse to ensure other schools can take credit for their call and SCOTUS placements. Good luck placing clerks with only three of the nine justices and half the federal bench. Plus, students who transfer may actually learn something about the law – a useful skill for any internship.
I don’t know if any YLS students were actually transferred. If they did, I’ll shake their hands. Some students may have chosen to stay at Yale to reform the institution from within. Good luck to them. Maybe some students couldn’t transfer for a host of personal reasons. I understand. But there’s a handful of students who said, “Yeah, things are horrible here, but I’m this closes to Yale JD and I’m not going to throw it away. “These are precisely the type of people that Judge Ho would not want to hire. Ditto for future graduates who knowingly choose Yale rather than Harvard or Chicago.
Will Judge Ho’s boycott work? To be effective, there must be a critical mass of participating federal judges. I am reliably informed that some judges have calmly stopped hiring at Yale Law School. They don’t want to be as vocal as Judge Ho. If you are a judge who has stopped hiring students who voluntarily go to YLS and has sacrificed principles for prestige, contact me. I can serve as an anonymous clearinghouse.
I don’t think the risk of a boycott is limited to the judiciary. A future Republican administration can categorically call every YLS graduate a squish. It’s entirely possible for President DeSantis (an HLS graduate) to simply boycott all Yale grads who enrolled after 2021. Good luck explaining why you chose to stay at YLS for that shiny brass ring then that a Chicago grad gets the name.
At some point, Dean Gerken will need to take note of when the annual internship statistics will be collected, specifically the coveted SCOTUS slots. Eventually, she’ll actually have to discipline students who break law school rules. And I don’t mean a pat on the wrist. The expulsion would get the message across. Then law school applicants and federal judges can take a second look at Hogwarts.
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